Summary: The Ombudsman will not investigate this complaint about the way the Council has dealt with the complainant’s son’s EHC plan. This is because part of the complaint has already been considered by a SEND tribunal, and it is unlikely we would find any significant injustice caused by the other parts of the complaint.

The complaint

1. The complainant, who I shall call Ms Y, complains about the way the Council has dealt with the EHC plan for her son, who I shall call X. Ms Y says the Council:

• Delayed confirming whether it would issue a plan and then failed to include appropriate specialist assessments
• Sent a copy of the plan to an incorrect address
• Has not reimbursed her son’s travel costs to the school named in his plan
• Failed to consult other schools before completing the plan

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or

• the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)

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How I considered this complaint

6. I have read what Ms Y has told us about her complaint, together with the information sent to us by the Council. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened

7. Ms Y asked the Council to carry out an assessment of X’s special educational needs. The Council completed an assessment and issued a final EHC plan in May 2019.
8. Ms Y was unhappy that the Council had not carried out assessments for speech and language and occupational therapy before completing the plan. She complained to the Council and appealed to a SEND Tribunal.
9. In December 2019 the Council agreed to commission the assessments requested by Ms Y. The appeal was resolved by consent.
10. In January 2020 the Council issued an amended final plan including provision for speech and language, and occupational, therapy.
11. In its response to Ms Y’s complaint the Council said:

• New assessments had been commissioned
• Although X’s father’s details had been included in the EHC plan, there was no evidence that a copy of the plan had been sent to the out of date address.
• While the school X attends is named on his plan it will pay his travel costs, backdated to the May 2019 final plan.
• X is attending Ms Y’s preferred school.
• It accepted there had been poor communication and delay in arranging payment of the travel costs but there had not been any fault regarding the other parts of Ms Y’s complaint.

Assessment

12. I do not consider any delay in the initial stage of the EHC plan process caused significant injustice. And we cannot look at the complaint about the delay in carrying out the specialist assessments or issuing the Amended Final EHC plan. This is because these issues were part of, or closely linked to, Ms Y’s appeal to the SEND Tribunal.
13. Ms Y has told us there was a personal data breach by the Council in obtaining an address for X’s father from records it held for her daughter. The Council wrongly sent correspondence to this out of date address as shown by the cover letter with the Amended Final Plan, which was “cc’d” to X’s father.
14. I understand Ms Y’s concern. She may pursue any breach of her daughter’s data rights with the Information Commissioner’s Office but it is not something we can look at as part of this complaint about X’s EHC plan. And there is nothing to indicate including an out of date address for X’s father in the plan caused Ms Y any tangible injustice.
15. The Council has told us payment of the backdated travel costs has been authorised and will be made as soon as it receives Ms Y’s bank details. I consider this represents a satisfactory response and Ms Y has not been caused any significant injustice.
16. X is attending Ms Y’s preferred school and the Council has agreed to pay the travel costs. The fact that the Council did not consult any other schools during the EHC plan process has not caused Ms Y any injustice.

Final decision

17. The Ombudsman cannot investigate the complaint about the completion of the EHC plan because this has already been considered by the Tribunal. And he should not investigate the other parts of the complaint because it is unlikely we would find any significant injustice.

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Investigator's decision on behalf of the Ombudsman